Opinion
C083120
07-24-2018
MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
Appellant filed a petition for rehearing with this court. It is hereby ordered that the petition for rehearing is denied.
It is also ordered that the opinion filed herein on July 24, 2018, be modified as follows:
1. Beginning on page 13, the second sentence of the Disposition should be deleted and replaced. That sentence presently reads: "The order denying the DVRO is affirmed and the case is remanded to the trial court for an adequate statement or reasons for the denial, as required by section 6340, subdivision (b)."
That paragraph will now read:
The claim challenging the termination of the JCRO is dismissed as moot. The order denying the DVRO is conditionally reversed and the case is remanded to the trial court for compliance with section 6340, subdivision (b), or, at the court's election, further proceedings consistent with this opinion. Upon compliance with section 6340, subdivision (b), the order denying the DVRO is reinstated. No costs are awarded on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
2. On page 10, the citation to Nakamura at the end of the first paragraph contains an error in the page number. The citation will now read:
(Nakamura [v. Parker, supra,] 156 Cal.App.4th 327.)
These modifications do not change the judgment. FOR THE COURT: /s/_________
Raye, P. J. /s/_________
Mauro, J. /s/_________
Duarte, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SFL20120210, SFL20150171)
Jessica V. appeals from denial of her request for a domestic violence restraining order (DVRO) against Douglas M., her former live-in companion and the father of two of her children, as well as from the termination of a juvenile court restraining order protecting their children from Douglas M. Jessica contends the court abused its discretion in denying the DVRO and, alternatively, the court failed to provide an adequate statement of reasons for the denial, as required by Family Code section 6340, subdivision (b). She contends the court also erred in terminating a juvenile court restraining order (JCRO), also in place at the time, sua sponte and without notice to the protected parties. She further contends the court's factual findings for termination were not supported by substantial evidence.
We grant Jessica V.'s request to use initials for the parties and related individuals to protect the privacy rights of her and the children. (See California Rules of Court, rule 8.90.)
Further undesignated statutory references are to the Family Code.
We find Jessica has failed to show an abuse of discretion in the denial of the DVRO, but the court failed to provide an adequate statement of reasons, and remand for provision of an adequate statement. We find the court erred in terminating the JCRO, but because that order expired in 2017, we dismiss this claim as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Jessica and Douglas never married but lived together for many years and had two children, L.M. born in 1999 and A.M. born in 2008.
In 2012 Jessica sought a DVRO against Douglas. She alleged Douglas called her and her niece names, sprayed them with water, and threatened to burn down her trailer and go to her work and get her fired. Previously, Douglas had grabbed her by the throat until she could not breathe and abused L.M. by yelling at her and spanking her with a belt. Douglas had a fight with a neighbor in which they cursed and threw bottles at each other in front of the children. He also pushed L.M. against a bookcase, causing her knees to bleed.
Douglas denied the allegations of abuse.
The court granted a peaceful contact restraining order, but denied the request for a stay-away order.
A few months later in 2013, Jessica sought another DVRO and requested both stay-away and move-out orders. She alleged Douglas had locked her out of her trailer, tried to push her mother down the stairs, and had sex with her without her consent. The police had responded and arrested Douglas.
Douglas denied the sexual allegation.
The court issued a three-year DVRO, expiring February 6, 2016. The DVRO included a move-out order and a stay-away order, except that Douglas could have contact with the children in accordance with the visitation order.
In January 2013 El Dorado County initiated dependency proceedings as to both children. The dependency petition alleged a failure to protect (Welf. & Inst. Code, § 300, subd. (b)) due to substance abuse by both parents and the children's exposure to domestic violence.
The parties' agreed statement states the dependency proceedings were based on the parents' drug abuse and "grooming" behavior by Douglas.
The court sustained the petition. In July 2015 the juvenile court terminated jurisdiction. Jessica was granted sole legal and physical custody of the children. As part of the exit orders, the juvenile court issued the JCRO, protecting the children from Douglas, except as provided in the visitation order. At that time, Douglas had supervised visitation only with the younger daughter. The JCRO expired on July 17, 2017.
In March 2016 one month after the DVRO expired, Jessica sought a new DVRO. Jessica alleged that on two occasions Douglas contacted her while she was on her lunch break at Harrah's casino. The first time, Douglas was waiting for her in the cafeteria. Douglas approached and said, "Hey, Jessica, can I talk to you?" She said no and walked quickly away scared. Douglas got angry and yelled, "Hey bitch, then give me your number." Jessica grabbed the arm of the friend she was with and walked away quickly. She took a longer route back to work and was late. On the second occasion, Jessica was again having lunch with her friend. Douglas was waiting for them by the exit. He followed them and yelled, "You need to talk to me bitch or else."
In response, Douglas explained he had made contact with Jessica to set up visitation. He denied any threats, harassment, or foul language. He wanted Jessica advised to follow the visitation order and wanted visitation expanded and unsupervised.
There was no court reporter at the hearing; the parties have provided an agreed statement. Jessica confirmed that everything in the petition was true. Jessica's friend testified she was with Jessica during both incidents. Douglas yelled at Jessica, but the friend could not specify what he said. Jessica was scared. On cross-examination, the friend testified Douglas asked for Jessica's phone number.
Douglas testified he knew the DVRO had expired. He had contacted both the police and the court clerk and confirmed the only restraining order in effect applied only to the children. He wanted to contact Jessica about visitation and did not have her phone number or any other way to contact her. He knew visitation was to be through Parent2Parent. Parent 2Parent had suspended visitation due to his conduct, but Douglas disagreed he had not followed the rules. Douglas denied that Jessica's refusal to talk to him made him angry and denied wanting to intimidate her. He admitted he knew she did not want to talk to him.
The court found: "The Court has given weight to all reviewed documents and all testimony by all parties. The court finds that there is no basis for a permanent restraining order. [¶] Restraining order petition is denied."
Counsel for Douglas (incorrectly) represented that the JCRO had no expiration date. The court then terminated the JCRO.
Jessica moved for reconsideration of the order terminating the JCRO. She argued that the JCRO did not automatically terminate upon exit orders and the procedural requirements of Welfare and Institutions Code sections 385 and 386 had not been met; there had been no notice.
Douglas's attorney admitted he had misspoken and there was in fact an expiration date on the JCRO. He agreed the trial court could not terminate the JCRO without notice, but claimed the issue was moot because the children were protected by the visitation order. Douglas was to have no contact with L.M. and supervised visitation with A.M. The court took the issue under submission.
The trial court denied the motion for reconsideration. The court ruled the requirements of Welfare and Institutions Code section 386 applied only to dependency proceedings, not family law proceedings. The court stated it had found both prongs of the findings required by rule 5.700 of the California Rules of Court at the earlier hearing. There were significant changed circumstances, demonstrated by the denial of a new DVRO, and termination of the JCRO was in the best interests of the children.
DISCUSSION
I
Denial of DVRO
Jessica first contends the trial court abused its discretion in denying the DVRO because the record contains substantial, uncontroverted evidence of abuse, especially when considered in conjunction of the past adjudicated acts of abuse justifying the prior DVROs.
Douglas has not filed a respondent's brief. Accordingly, we "decide the appeal on the record, the opening brief, and any oral argument by the appellant" (Cal. Rules of Court, rule 8.220(a)(2)), examining the record and reversing only if prejudicial error is shown. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
A. The Law
Under the Domestic Violence Prevention Act (DVPA) (§§ 6200 et seq.), an order may issue to restrain a person to prevent the recurrence of domestic violence if there is reasonable proof of a past act or acts of abuse. (§ 6300.) In deciding whether to issue the order, the court is to consider the totality of the circumstances. (§ 6301, subd. (c).)
Abuse under the DVPA includes intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing the person in reasonable apprehension of imminent serious bodily injury, or engaging in behavior that could be enjoined under section 6320. Section 6320 permits enjoining a party from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering . . . , harassing, telephoning . . . contacting, either directly or indirectly, by mail or otherwise . . . disturbing the peace of the other party." "Disturbing the peace of the other party" means "conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.) "[P]rotective orders can be issued because of persistent unwanted phone calls or letters—which fall into the same category as 'molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, [or] harassing' the protected party." (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290-1291, italics added.)
The grant or denial of a DVRO is reviewed for an abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) " 'The scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action. . . ." Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion.' " (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
B. Analysis
Jessica contends the record contains substantial, uncontroverted evidence of abuse. She argues that even if the contradicted evidence that Douglas swore and yelled at her and followed her is not considered, the uncontradicted evidence established that on two occasions Douglas went to the restaurant near her work and waited for her, unannounced and uninvited, and demanded she speak to him although he knew she did not want to. She asserts this behavior "could not but" disturb her peace of mind and thus rose to the level of abuse for which a DVRO may issue.
Douglas admitted he went to the casino on a third date, but there was no evidence that he saw Jessica on that date.
Jessica contends this case is similar to a number of cases; we address each and find them distinguishable.
In Sabato v. Brooks (2015) 242 Cal.App.4th 715, the trial court issued a DVRO after an ex-husband contacted his ex-wife over several months, on average once a week, through texts and email after she asked him to stop. This court found the alleged failure to consider the ex-husband's opposition papers was harmless because "these unilateral, unwanted and harassing contacts supported the issuance of the domestic violence restraining order." (Id. at p. 725.)
In Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, defendant would not accept the end of a romantic relationship. Between June and October of 2012, he kept contacting plaintiff despite her repeated requests that he not. At the end of October, she again asked him not to contact her, but he continued to contact her by email and text. (Id. at p. 1142.) The following February, he appeared outside her residence and plaintiff told him to leave. Defendant got angry and would not leave, pacing around her porch for 10 minutes until he finally called and said he was leaving. (Id. at pp. 1142-1143.) The reviewing court found defendant's conduct--"his inability to accept that his romantic relationship with plaintiff was over, and despite plaintiff's numerous requests that he not contact her, was engaging in a course of conduct of contacting plaintiff by phone, e-mail, and text, which messages contained inappropriate sexual innuendos, and arriving at her residence unannounced and uninvited, and then refusing to leave and making a scene when she refused to see him for the purpose of causing her to renew their romantic relationship"-- constituted disturbing the peace and was sufficient evidence of abuse to support granting a DVRO. (Id. at pp. 1144, 1146.)
In Nevarez v. Tonna (2014) 227 Cal.App.4th 774, the appellate court found abuse sufficient to support a DVRO. After the end of a romantic relationship, Tonna grabbed Nevarez's wrist, which left a bruise, and pushed her on a stairwell. After this incident, Nevarez told him to stop contacting her, but Tonna continued, sending her repeated text messages and e-mails, often in the middle of the night, coming to Nevarez's workplace and preventing her from getting into her car. Finally, on a subsequent incident, Tonna banged on the window of her car and repeatedly insisted she roll down her window and speak with him. (Id. at p. 784.)
In Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 398, the reviewing court reversed a denial of a DVRO, finding "little doubt" that continued phone calls and texts constituted abuse. The phone calls and texts included threats and continued while the expired restraining order was still in effect. (Ibid.) Further, the trial court erred in not considering evidence that the father had physically abused the children. (Id. at pp. 400-401.)
These cases are distinguishable because in each of them the unwanted contact was "persistent" (Ritchie v. Konrad, supra, 115 Cal.App.4th at pp. 1290-1291), continuing over a substantial period of time, and often accompanied by threats or physical violence. We will find an abuse of discretion in denying the DVRO only if the proven conduct constituted abuse as a matter of law. We accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment. (Burquet v. Brumbaugh, supra, 223 Cal.App.4th at p. 1143.) Viewed in this light, here the evidence established only that Douglas twice met Jessica in a public place and attempted to talk with her when she did not want to talk. Because Douglas's conduct was considerably less egregious than that in Sabato, Burquet, Nevarez, and Perez, we find it does not constitute abuse under the DVPA as a matter of law.
Amici curiae California Women's Law Center, Legal Services for Children, and Legal Advocates for Children and Youth contend the trial court erred in failing to recognize Douglas' stalking behavior. They contend this alleged error is significant because stalking is a known lethality indicator in domestic violence cases. But the record before us establishes only two unwanted contacts, without threats or harassment. Such contact alone is insufficient to show stalking. (See Pen. Code, § 646.9.)
Jessica has not established that the trial court abused its discretion in denying the DVRO.
C. Failure to Provide Adequate Statement of Reasons
In an alternative argument, Jessica contends the family court committed reversible error by failing to provide a statement of reasons for denying the DVRO, as required by section 6340, subdivision (b).
In 2014 the Legislature amended section 6340 to add a new subdivision (b) which provides: "The court shall, upon denying a petition under this part, provide a brief statement of the reasons for the decision in writing or on the record. A decision stating 'denied' is insufficient." (Stats. 2014, ch. 635, § 7.)
A bill analysis of Assembly Bill No. 2089 by the Assembly Committee on Judiciary explains the need for this provision. The analysis noted section 6320.5 requires a statement of reasons for an order denying a temporary protective order. "That requirement came in response to a trial court's decision to deny a jurisdictionally valid request for a domestic violence TRO, with no explanation beyond that provided by the following statement rubber-stamped on the face of the victim's application: 'The undersigned judicial officer has read and reviewed the attached application and declaration for order. The facts set forth do not provide a legal basis to issue the order requested and the application is therefore denied.' The appellate court, in reversing the trial court, called the unexplained response 'highly imprudent,' and declared that judges statewide should at least explain their reasoning if they deny a domestic violence victim's request for a temporary restraining order that was backed up with written allegations of injuries, threats or harassment. The [reviewing] court concluded that an unexplained denial 'may well stimulate the continuing domestic abuse that the (law) was specifically designed to prevent' and lead victims to believe they have no recourse. (Nakamura [v. Parker, supra,] 156 Cal. App.4th 3327.)
"This bill seeks to extend this same important protective policy to orders after hearing to ensure that both petitioners and respondents, almost all of whom are unrepresented by counsel, understand why the court has made its order. Thus, the bill requires a court, upon approving or denying an order after hearing under the DVPA, to state its reasons in writing or on the record." (Assem. Com. on Judiciary, com. on Assem. Bill No. 2089 (Reg. Sess. 2013-2104) as amended April 10, 2014, p. 6.)
The Judicial Council opposed the bill based on the burden the statement of reasons requirement would impose on courts, particularly those that lack court reporters. In response, the analysis noted, "Unfortunately, the dire lack of critically needed court reporters in family law proceedings, supporters argue, just underscores the need for more information to be in writing if there is no record of the proceedings and thus provides further, not less, support for this provision of the bill." (Assem. Com. on Judiciary, com. on Assem. Bill No. 2089, supra, as amended April 10, 2014, p. 7.)
Here, the trial court concluded in full as follows: "The Court has given weight to all reviewed documents and all testimony by all parties. The court finds that there is no basis for a permanent restraining order. [¶] Restraining order petition is denied." This statement is similar to that found deficient in Nakamura. It does not tell the parties why the court denied the DVRO. Although we have found the evidence at the hearing did not establish abuse under the DVPA as a matter of law, we cannot say, especially where there is no transcript of the hearing, the court provided no factual reasons, and credibility determinations are at issue, that the allegations could not, as a matter of law, establish abuse under the DVPA. Thus, while the court may have acted within its discretion in denying the DVRO, we cannot say with assurance that it did because it did not explain its reasons.
Jessica requests this court remand the case for immediate entry of a restraining order for five years protecting her and her family. She offers no authority to support her request. Instead, we remand to the family court for an adequate statement of reasons under 6340, subdivision (b).
II
Termination of JCRO
Jessica contends the court erred in terminating the JCRO. As we explain, we agree.
Amici curiae argue family law courts should give deference to the orders of juvenile courts because such courts have special expertise in dependency matters. We do not find this case presents an issue of lack of proper deference as the same judicial officer issued both the exit orders with the restraining order and later terminated the order. We deny amici curiae's request for judicial notice of the legislative history of Welfare and Institutions Code section 302 as it is unnecessary to our decision. (County of San Diego v. State (2008) 164 Cal.App.4th 580, 613, fn. 29.)
A. The Law
Juvenile courts may issue restraining orders. (Welf. & Inst. Code, § 213.5.) When a juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court, any order issued as part of the exit orders "shall continue until modified or terminated by a subsequent order of the superior court." (Welf. & Inst. Code, § 362.4, subd. (b); see Cal. Rules of Court, rule 5.630(i).) "[O]nce the juvenile court terminates jurisdiction, the family court assumes jurisdiction over restraining orders issued in juvenile court. (See Welf. & Inst. Code, § 362.4.)" (Garcia v. Escobar (2017) 17 Cal.App.5th 267, 271.)
The family law court may terminate or modify a restraining order upon stipulation of the parties or a motion of a party. (§ 6345, subd. (a).) Where the motion to terminate is not brought by the protected party, the protected party must be given notice at least 16 court days before the hearing, as set forth in Code of Civil Procedure section 1005, subdivision (b). (§ 6345, subd. (d).)
To modify or terminate a restraining order issued by the juvenile court, the superior court must find both that there has been a significant change in circumstances since the juvenile court issued the order and that modification or termination is in the best interests of the child. (Cal. Rules of Court, rule 5.700(a).)
B. Analysis
In denying the motion to reconsider its order terminating the JCRO, the trial court addressed only the notice requirements for dependency proceedings and found them inapplicable. The court stated it had found the two requirements of Rule 5.700: significant changed circumstances (the denial of the DVRO) and best interests of the children.
Here, the statute provides for termination by stipulation or a motion by a party (§ 6345, subd. (a)), there is no provision for the trial court to terminate sua sponte the order. (Compare Cal. Rules of Court, rule 5.630(k)(1) [allowing juvenile court to modify restraining order on its own motion].) The court did not give the required notice or hold a hearing on termination. The court purported to make the required findings but no evidence supports them. The issue of the best interests of the children was not addressed at all in the hearing on the DVRO. We note Douglas had supervised visitation with his younger daughter and no visitation with his older daughter.
The JCRO expired July 17, 2017. "If relief granted by the trial court is temporal, and if the relief granted expires before an appeal can be heard, then an appeal by the adverse party is moot. [Citation.] However, 'there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [citation].' [Citation.]" (Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 144.)
Jessica argues the issue is not moot because it is an issue of public interest likely to recur. Given the odd circumstances of this case--an off-the-cuff termination without notice or hearing--we doubt the situation is likely to recur. She argues there was prejudice because if the order had not been terminated, it could have been renewed. There is, however, no evidence in this record that such renewal was likely or necessary.
Because the JCRO has expired, there is no relief we can provide. We dismiss this claim as moot without prejudice to the filing of a new petition for a restraining order, if appropriate.
DISPOSITION
The claim challenging the termination of the JCRO is dismissed as moot. The order denying the DVRO is affirmed and the case is remanded to the trial court for an adequate statement or reasons for the denial, as required by section 6340, subdivision (b). No costs are awarded on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Mauro, J.